ANANT SHRIPATI KODRE Vs. SUKHARAM SHRIPATI KODRE

JUDGEMENT

(1.) JOINT families most of the times wreck on the rock of the joint families properties. Lis has always been amongst the blood relations-father, sons and brothers in respect of properties. In the present case the original plaintiff is the brother of the original defendants. He filed the present suit for partition and separate possession of his 1/3rd share in the properties shown in paragraph 5-a of the plaint, being ancestral lands. According to the plaintiff the other properties shown in paragraphs 5-b and 5-f were purchased from the income from the ancestral lands. The plaintiff has also alleged that the house properties shown in paragraph 5-f and 5-g were also purchased from the income of the joint family property. The defendants 1 and 2 contended that during the life time of Shripati, the father of plaintiff and the defendant No. 1, the plaintiff was given gold and silver in lieu of his share and he decided to quit the family because of domestic quarrels. The defendants have therefore contended that the plaintiff now cannot claim any share in any property. They have also contended that except the lands shown in para 5-1 of the plaint all the properties are self acquired properties of defendant Nos. 1 and 2 and therefore, the plaintiff is not entitled to claim any share in that property. The defendants have further raised a point of limitation as according to them the suit was barred by limitation as on the admission of the plaintiff himself he was driven out from the house as back as in 1955-58 and therefore, the suit filed in the year 1977 was clearly barred by limitation. According to the defendants the plaintiff has no cause of action to file the suit as he has received moveable properties as is disclosed in the Will executed by the deceased Shripati in December 1965 (Ex. 188) wherein it is clearly stated that in or about 1958 the plaintiff was given 20 Tolas of gold and 500 tolas of silver in lieu of his share in the joint family property. According to the defendants plaintiff was given far more share in the property than he was entitled to. It is also contended by the defendants that the plaintiff did not file this suit during the life time of his father Shripati, who expired in 1975 and if the suit were to be filed during his life time he would have definitely testified the fact of partition and the fact of giving of the gold and silver to the plaintiff in lieu of his share in the immovable properties. On the point of limitation the defendants have contended that if the plaintiff was forcibly ousted from the house some where in the year 1958 and that if his life was miserable thereafter, in that case he could have filed a suit for partition of the joint family properties within the prescribed period of 12 years i. e. before 1970. According to them the plaintiff did not do so as he had accepted the fact of partition when he was given gold and silver by Shripati as his share in the joint family property. The defendants have therefore strongly contended that the suit deserves to be dismissed on the ground of limitation as well as on merits. Alternatively the defendants have submitted that the plaintiff has claimed share in the joint family property shown in paragraph 5-a of the plaint which are admittedly the ancestral property. According to the plaintiff himself the other properties were not the ancestral properties and same were not acquired from income the ancestral property and therefore he cannot be given any share in the properties which are not the ancestral properties and which were not acquired from the nucleus of the joint family ancestral properties.

(2.) THE learned Judge has framed as many as 12 issues on the basis of the pleadings of the parties and after considering oral and documentary evidence before him and he answered the same and has recorded his findings holding the suit not barred by limitation and not bad for misjoinder of cause of action and misjoinder of parties; that the defendants did not prove that the plaintiff was ousted from the joint family about 25 years back by giving him gold and silver, that the defendants did not prove that they became owners of the suit property by adverse possession; that they did not prove that the plaintiff had purchased lands in Akluj region with the aid of the joint family property that the plaintiff has proved that the suit properties mentioned in the plaint are the joint family properties and that the defendants have not proved that the property mentioned in para 5-b, 5-h are the self acquired properties of defendant No. 1; the trial Court finally held that the plaintiff was entitled to get the possession of his 1/3rd share out of the properties. The trial Court has also held that the plaintiff was entitled to past and future means profit. The learned trial Judge has given an order that the plaintiff is entitled to half share in the suit lands viz. Survey No. 51/2-B, 51/5, 51/6 and 51/a more particularly described in para 5-A of the plaint. It is also held that the plaintiff is entitled to 1/3rd share out of Survey No. 58/3, 58-6-B/2, 58/6-B1-A/2 more particularly described in para 5-A of the plaint and other properties more particularly described in paras 5-B and 5-H of the plaint. The learned Judge has also passed other consequential orders while decreeing the suit.

(3.) IT may be stated here that one of the defendants Shri Ganesh Dattatraya Jog did not contest the suit at any stage of litigation he was, therefore, deleted in the present proceedings in the High Court.